Opinion
No. CP03-013615
September 29, 2003
MEMORANDUM OF DECISION RE PETITIONER'S MOTION FOR ARTICULATION
On September 11, 2003, the Department of Children and Families (DCF) filed a Motion for Articulation requesting the court to "set forth the duties and responsibilities" of the Guardian ad Litem (GAL) who has been appointed for the respondent mother, Nafiah B. The Motion for Articulation further requests the court to "delineate, pursuant to Rule 1.14 of the Rules of Professional Conduct (RPC), the obligation of the mother's attorney to look to the GAL for decisions made on behalf of [the respondent mother]." The dispositive issues raised through this motion have the subject of prior judicial attention, and are largely resolved by reference to the principles enunciated in Schult v. Schult, 241 Conn. 767, 699 A.2d 134 (1997), and its offspring, In re Tayquon H., 76 Conn.App. 693, 821 A.2d 796 (2003). Utilizing these standards, the court grants DCF's request in part, and below sets forth the duties and responsibilities of Nafiah B.'s GAL. The court also denies DCF's request in part, thus permitting the respondent mother's attorney to advocate in support of such claims and desires as Nafiah B. has clearly articulated and expressed.
RPC Rule 1.14. applies to attorneys who represent both children and individuals who are incompetent for some reason other than chronological age. The rule provides, in pertinent part: "(a) when a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client."
Although Schult v. Schult, supra, involved a custody dispute which arose during an action for dissolution of marriage, such a family matter is akin to a juvenile proceeding pursuant to the application of General Statutes § 46b-1 (11). Accordingly, Schult v. Schult provides valid guidance for this court.
In reaching its decision on this matter, the court has limited its consideration to the specific issues raised by DCF's motion. Consideration of the outcome of the contested OTC hearing or the outcome of any anticipated neglect trial would have led the court far beyond the necessary parameters of the pending requests.
I. HISTORY OF THE PROCEEDINGS
The underlying case arose from a contest over the custody of Isaiah, B., a child who was born on May 9, 2003 to Nafiah B. and the respondent father, Daymon M. DCF filed an Order of Temporary Custody (OTC) application on June 10, 2003, along with a petition alleging that Isaiah was neglected and uncared for. The court (Esposito, J.) granted that OTC application ex parte on parte on the date of filing. Thereafter, on June 18, 2003, the court (Esposito, J.) appointed a GAL for the respondent mother. The respondent parents contested the continuation of the ex parte OTC, and that CT Page 10275-b matter was transferred for hearing at the Child Protection Session (CPS). The neglect/uncared for petition remains pending.
The OTC petition alleged that Isaiah would be subject to immediate physical harm if he were returned to the present care and custody of Nafiah B., his custodial parent. The neglect/uncared for petition specifically alleged that Isaiah was being denied proper care and attention, physically, educationally, emotionally in that he was being permitted to live under injurious conditions, circumstances or associations, and that as an infant, he was uncared for in that his home could not provide the specialized care which his physical, emotional or mental condition required. In its Addendum/Jurisdictional Facts dated June 10, 2003, DCF further alleged that Nafiah B. "has severely limited cognitive functioning with an IQ of about 40 [which] limitations prohibit mother from making sound decisions and affect her ability to meet her baby's ongoing needs;" that Isaiah B. is an infant who requires a high level of care; and that Nafiah B. is not able to provide appropriate care for the child even with 24-hour supervision.
Counsel have stipulated that DCF's September 11, 2003 Motion for Articulation should be resolved at the Child Protection Session.
Under date of June 25, 2003, while awaiting hearing of the OTC matter at the CPS, Nafiah B. filed a Motion for Permission to Cite in the Department of Mental Retardation (DMR) as a necessary party. The court (Esposito, J.) granted her motion, whereupon a third-party petition was served against DMR on July 7, 2003. The petition against DMR incorporated all of the allegations in DCF's neglect/uncared for petition. In addition, through its Addendum — Jurisdictional Facts, the petition against DMR alleged, among other things, that Nafiah B. "is mentally handicapped and receives services, including but not limited to Supportive Housing and Supervised Living from DMR. Nafiah B. also alleged that "[a]t all times relevant to this petition, the respondent mother was under the supervision of the respondent Commissioner of DMR, his agents, employees or contractors. Said supervision was in place 24 hours per day, seven days per week."
DMR has moved to dismiss the respondent other's pending third-party petition. The parties presented argument at the CPS on August 29, 2003, and the matter remains under consideration. The petition against DMR was brought by the "Atty for Respondent Mother" on July 7, 2003, not by Nafiah B.'s GAL, even though the GAL has already been appointed. The DMR has not raised this issue as a ground for dismissal of the pending petition. See Newman v. Newman, 235 Conn. 82, 95, 663 A.2d 980 (1995). Under all the circumstances of this case, including the granting of permission to cite in DMR as a necessary party to the action, the court accordingly concludes that DMR has recognized the amendable nature of the irregularity in the third-party petition, and has tacitly waived any objection to the designation of the person who brought this claim on Nafiah B.'s behalf. Newman v. Newman, supra, 235 Conn. 102 (the bringing of an action for a minor child or, by extension, for an incompetent person without the aid of a next friend or guardian ad litem is an amendable irregularity which could be waived'); see also Brown v. Villano, 49 Conn.App. 365, 373, 716 A.2d 111 (1998).
In response to Nafiah B.'s compliance with the court's (Esposito, J.) ordered her to under go a competency examination to determine her capacity to participate at trial. An evidentiary hearing was held at the CPS on September 11, 2003. The uncontroverted evidence established that Nafiah B. has the ability to communicate and function at the level of a person who is aged six to nine. She can perform some intellectual tasks, but is not yet able to reason in an abstract way; this skill is generally acquired at ages eleven to fourteen, a stage which Nafiah B. has long surpassed chronically, but which she will never achieve insofar as her intellectual development is concerned. (Testimony of Sarghi Sharma, M.D.) Nafiah B. is able to express fundamental desires, although she is unable to form a valid opinion concerning her own best interests, in the abstract, with regard to these desires. After consideration of the evidence and arguments of counsel, the court (Rubinow, J.) found that Nafiah B. was incompetent for purposes of trial, being unable to fully understand the nature of the proceedings, and being unable to fully assist her counsel in the defense of the OTC or negligence allegations, or in the prosecution of the third-party petition against DMR. Though her counsel, the respondent mother waived any finding as to whether Nafiah B. could be restored to competency within a reasonable period of time.
Nafiah B. was born on March 9, 1981. The evidence presented by the court-appointed psychiatric evaluator clearly established Nafiah B.'s extant but limited ability to comprehend information and to express herself. (Testimony of Sarghi Sharma, M.D.) This evidence is consistent with the allegations presented in DCF's pending petitions concerning Nafiah B.'s status, and is similarly consistent with the allegations presenting in the respondent mother's petition against DMR. However, notwithstanding the evidence related to Nafiah B.'s significant long-standing cognitive disabilities, the court received no evidence indicating either that a conservator has been appointed to represent her person or estate pursuant to General Statutes § 45a-644 et seq., or that a plenary or imitated guardian has even been appointed for this mentally retarded person pursuant to General Statutes § 45a-669 et seq. See § 45a-669 (f), (g).
II. ROLE OF THE GAL FOR AN INCOMPETENT PERSON
In addressing DCF's inquiries about the role of Nafiah B.'s GAL, the court has acknowledged that the allegations raised through the pending OTC application and the neglect/uncared for petition implicate weight, constitutional issues related to the respondent mother's relationship to her child. Troxel v. Granville, 530 U.S. 57, 66, 530 U.S. 57, CT Page 10275-c 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ("relationship between parent and child is constitutionally protected"); In re Shamika F., 256 Conn. 383, 405-06, 773 A.2d 347 (2001); see also In re Tayquon H., supra, 76 Conn.App. 699. "[T]he interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized" by that court. Troxel v. Granville, supra, 530 U.S. 65. Fundamentally, "the "liberty' protected by the Due Process Clause includes the right of parents to "establish a home and bring up children' and `to control the education of their own.'" (Citations omitted.) Id. while Nafiah B.'s "right to family integrity is not absolute," this constitutional premise requires a high level of attention from the court and from counsel during the pre-trial period as well as during any trials that may take place. In re Tayquon H. supra, 76 Conn.App. 699.
The Connecticut Supreme Court adopted the principles of Troxel v. Granville, supra, when determining that a trial court's application of General Statutes § 46b-59 was unconstitutional. Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002) (defining circumstances under which parents may prevent third-party visitation with their children).
With these principles in mind, the court first ascertains the function of a GAL who is appointed for an incompetent adult in child protection litigation. While the specific issue appears to be one of first impression, related statutory and case authorities impel the determination that the duties and responsibilities of an adult's GAL in such matters are indistinguishable from the obligations borne by a child's GAL in civil cases. The legislature has clearly contemplated the necessity for the appointment of GALS to serve the interests of incompetent persons as well as minors in child protection litigation, providing in General Statutes § 45a-132 (a) that "In any proceeding before a court of probate or the Superior court . . . the judge or magistrate may appoint a guardian ad litem for any minor or incompetent, . . . if it appears to the judge or magistrate that one or more persons as individuals — are minors, incompetent persons or persons undetermined or unborn at the time of the proceeding. (Emphasis added.) The Supreme court has construed this provision as establishing an appropriate basis for appointing not only GALS for children but also for adults who are incompetent for reasons other than age, noting: "It is significant that the legal disability of an incompetent is analogous to that of a minor . . . In each case, the purpose of providing representation is to ensure that the legal disability imposed will not undermine adequate protection of a ward's interest. 39 Am.Jur.2d, Guardian and Ward, 1. Indeed, the forerunner of General Statutes 45-54, which provided for the appointment of a guardian ad litem only for minors, was amended in 1939, 1286e, to extend such coverage to incompetents without distinction between either class, an act indicative of the similarity of concern shown to each group by the legislature." (Emphasis added.) Cottrell v. Connecticut Bank Trust Co., 175 Conn. 257, 264, 398 A.2d 307 (1978) (examining § 45-54, the statutory predecessor to § 45a-132); see also Brown v. Villano, supra, 49 Conn.App. 373 (standing CT Page 10275-d of an incompetent is analogous to that of a minor insofar as the bringing of an appeal from probate is concerned). Thus, in addressing DCF's inquiries concerning the role of Nafiah B.'s GAL, ample guidance is available from the cases which define the duties and responsibilities of a GAL who is appointed to serve the needs of children in child protection and custody matters. See, e.g., Schult v. Schult, supra, 241 Conn. 767 (child's counsel may act upon client's expressed desires, not being bond by conflicting opinion of GAL); Newman v. Newman, supra, 235 Conn. 102 (in a marital dissolution action, children at issue have the right to appeal from custody determination); In re Tayquon H., supra, 76 Conn.App. 693 (in child protection matter, minor's court-appointed GAL speaks for the minor in lieu of her biological parent).
Defining the rights of parties in matters involving neglected, uncared for and dependent children, and termination of parental rights cases, Practice Book § 32-2 (a) establishes that: "All hearings are essentially civil proceedings except where otherwise provided by statute."
Such appointment is discretionary, pursuant to § 45a-132 (b).
In re Tayquon H. confirms that distinct, independent roles are played by the attorney and the independent GAL when a ward wishes an outcome for pending litigation that is inconsistent with her best interests. "[T]he obligation of the person appointed as counsel is shaped by the Rules of Professional Conduct, which, in pertinent part, obligate counsel to abide by a client's decisions concerning the objectives of representation. See Rules of Professional Conduct 1.2 (a)." (Footnote omitted.) In re Tayquon H., supra, 76 Conn.App. 703. Thus, "[t]he attorney should honor the strongly articulated preference . . . of [an incompetent person] who [has the capacity] to express a reasonable preference." (Internal quotation marks omitted.) Id., 707 n. 18, citing Schult v. Schult, 241 Conn. 779. On the other hand, "The primary task for the guardian act litem, at trial, is to make the decision maker aware of all the facts [concerning his ward] and to offer evidence as a sworn witness, subject to cross-examination." Id., 705-06. Accordingly, "[t]he guardian ad litem shall speak on behalf of the best interest of the [incompetent]" when Nafiah B.'s best interests diverge from her decisions concerning the objectives of representation, as promoted by her attorney in compliance with RPC 1.2 (a). In re Tayquon H., supra, 76 Conn.App. 703; see also Id., 704.
In re Tayquon H. is factually unique. In that matter, the Appellate Court confronted the limited question of whether a maternal grandmother had standing to contest an OTC that allowed DCF to remove a newborn grandchild from the custody of her minor daughter. In re Tayquon H., supra, 76 Conn.App. 694. The issue was resolved with the ruling that "as between a [court-appointed] guardian ad litem and a natural guardian [the maternal grandmother], the presumption should be that the court-appointed guardian ad litem is the proper person to speak for the child for the purposes of the litigation." Id., 710.
RPC Rule 1.2 (a) provides, in pertinent part, that: "(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to subsections (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued . . ." Subsections (c), (d) and (e) deal with limited representation with client consent; lawyer's advice concerning criminal or fraudulent conduct, and a client's request for beyond that permitted, respectively. The Commentary to RPC Rule 1.2 indicates that "[i]n a case in which the client appears to be suffering mental disability, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14."
While emphasizing that the GAL and the incompetent person's attorney play distinct, independent roles, Tayquon identifies a variety of tasks that a GAL may properly perform. In addition to "the making of recommendations to the court through testimony," those tasks include but are not limited to: independently investigating the facts related to the incompetent's situation, visiting with the incompetent and others to verify that court orders are being followed; interviewing the parties; frequently communicating with the incompetent and the court; and, of course, determining the incompetent's best interests and reporting these findings to the court, under the facts of a particular case. In re Tayquon H., Id., 705-06. when an incompetent respondent parent is CT Page 10275-e dually served by both an independent GAL who can forthrightly report concerning the parent's best interests, and by a competent attorney who advocates in favor of the parent's expressed desires, the court is well-served and the ward/client is well protected. These principles are satisfied in the court's orders regarding the GAL'S duties and responsibilities, set forth in Part IV.
Form JD-JM-100 sets forth some tasks which the court may order performed by GALs for children and youths involved in matters before the Superior Court for Juvenile Matters.
Further distinguishing the role of the GAL from that of counsel for a minor or other incompetent, In re Tayquon H., also cautions: "Just as it is not normally the province of the attorney to testify, it is not the province of the guardian ad litem to file briefs with the court." (Footnote omitted.) In re Tayquon H., 708.
III. ATTORNEY IS NOT OBLIGATED TO LOOK TO RESPONDENT MOTHER'S GAL'S DECISIONS REGARDING LEGAL REPRESENTATION
Through the Motion for Articulation, DCF also requests the court to issue what would in effect be an order that Nafiah B.'s attorney allow the respondent mother's GAL to make all decisions relating to the presentation of the respondent mother's pending legal claims. For the reasons stated below the court declines to grant the relief DCF has requested.
A similar request was addressed by the Supreme court in Schult v. Schult, supra, 241 Conn. 782-83. Although that matter involved a child and not an adult who was incompetent for reasons other than age, the court rejected the argument that the Rules of Professional Conduct "require counsel to advocate for the position of the guardian ad litem" in every case. Id., 782-83. The plaintiff mother and the child's GAL in Schult urged the court "to adopt a bright line rule that prohibits a child's attorney from advocating a position that is contrary to that of the guardian ad litem. They argue[d] that when a child is represented by both an attorney and a guardian ad litem in a custody dispute, the guardian ad litem becomes the attorney's `client,' and that, as the client, the guardian ad litem makes the decisions on behalf of the child, and the attorney must advocate those decisions." Id., 776-77. The court rejected the proposed rule which would have strictly prohibited a child's attorney from advocating a position that is different from that of the GAL, and instead held that "it is within the trial court's discretion to determine, on a case-by-case basis, whether such dual, conflicting advocacy of position is in the best interests of the child." Id., 777. Schult reminds us that "[t]ypically, the child's attorney is an advocate for the child, while the guardian ad litem is the representative of the child's best interests. As an advocate, the attorney should honor the strongly articulated preference of a child who is old enough to express a reasonable preference, while the guardian "might decide that, despite such a child's present wishes, the contrary course of action would be in the child's long term best interests, psychologically or financially." Id., 779-80, citing Newman v. Newman, supra, 235 Conn. 96. The Supreme court concluded that "where the court has appointed both an attorney and a guardian ad litem to represent a child in a dissolution action, the attorney for the child may advocate a position different from CT Page 10275-f that of the guardian ad litem so long as the trial court determines that it is in the best interests of the child to permit such dual, conflicting advocacy . . . To aid the court in the duty to determine the best interests of the child for purposes of custody, it may be helpful to the trial court to hear the contradictory positions of the attorney and the guardian ad litem." (Emphasis added.) Id., 780-81. The application of Schult v. Schult's legal principles to child protection matters was recently confirmed by In re Tayquon H., supra, 76 Conn.App, 693. Again considering the best interests of a minor, the Tayquon court specifically considered "the parameters of the guardian ad litem's role in juvenile proceedings and the relationship of the guardian ad litem to counsel [for the juvenile] when one is separately appointed." Id., 701. As with a child, the question of when a legally incompetent person has the capacity to express a reasonable preference, and thus direct her attorney how and when to act, "is one that is particularly ill-suited a bright line." In re Tayquon H., supra, 76 Conn.App. 711 n. 23; see also Schult v. Schult, supra, 241 Conn. 776-77. The court has the discretion to determine, on a case-by-case basis, whether it is permissible for an incompetent's lawyer to advocate"a position contrary to that of the guardian ad litem." Id., 702-03, citing Schult v. Schult, supra, 241 Conn. 769.
The limited issue on appeal in Schult v. Schult, arising from a marital dissolution action, was "whether an attorney representing a minor child in connection with a custody dispute may advocate a position that is contrary to that of the child's guardian ad litem." Id., 769.
This argument, promoted by the plaintiff-mother and the attorney for the minor children, was also supported by the Connecticut Chapter of the American Academy of Matrimonial Lawyers, which participated in the appeal as amicus curiae.
In Tayquon, the Appellate Court attempted to distinguish the distinct roles of a child's legal guardian, the attorney for the minor child and her court-appointed guardian ad litem in connection with OTC CT Page 10275-o proceedings.
In re Tayquon H., and Schult v. Schult are applicable to the present case insofar as Nafiah B.'s legal rights and desires for reunification with her son may not always be consonant with her best interests. Here, through her opposition to continuation of the ex parte OTC and the neglect/uncared for petition, and through her allegations in the third-party petition against DMR, Nafiah B. has made it clear that she prefers the immediate return of her child who is currently in DCF's care; she does not want the child to remain in the care of others. DCF may vigorously contest Nafiah B.'s preference to battle the OTC and neglect petitions, with the goal of receiving timely reunification with her son. But DCF's opposition does not, in and of itself, mean that Nafiah B.'s preferences are not "reasonable" or that they have not been "strongly articulated" within the meaning of Tayquon H., supra, 76 Conn.App. 707 n. 18 and RPC 1.2. Using its fair discretion, the court should hear both the position advocated on behalf of the respondent mother, and should also consider the position taken by Nafiah B.'s guardian ad litem, as such a protocol will aid in the achievement of the fair and impartial resolution which is called for under the circumstances of this particular case. In re Tayquon H., supra, 702-03, citing Schult v. Schult, supra, 241 Conn. 769.
This conclusion is consistent with the application of RPC Rule 1.14 to the factual circumstances of the case at hand. when dealing with a CT Page 10275-g "Client under a Disability" such as Nafiah B., RPC Rule 1.14 specifically requires the attorney for an incompetent adult to "as far as reasonably possible, maintain a normal client-lawyer relationship with the client" This rule does not preclude the attorney for an incompetent person from properly endeavoring to advise and assist the client in making decisions about important legal matters. Rather, by its very terms, the rule requires the attorney for an incompetent individual to listen to his client, and to ascertain whether reasonable, or unreasonable, preferences are strongly and articulately expressed. In re Tayquon H., supra, 76 Conn.App. 707 n. 18. The rule further anticipates that the attorney for an incompetent person will advocate the client's desires or opinions concerning legal issues, such as whether she should regain custody of her child, and the rule also anticipates that attorney will attempt to persuade the court that those desires or opinions may be entitled to great weight. Hence, the Commentary to RPC Rule 1.14 urges that "the lawyer should as far as possible accord the represented person the status of client particularly in maintaining communication."
See footnote 2. As found in Part I., it is uncontroverted that Nafiah B. presents to the court as being an individual with a significant degree of mental disability. It is further uncontroverted that the court had appointed a GAL for Nafiah B. two months prior to the determination that the respondent was not competent for purposes.
As the Commentary to RPC Rule 1.14 explains, "The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. when the client is a minor or suffers from a mental disorder or disability, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, an incapacitated person may have no power to make legally binding decisions. Nevertheless, a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. Furthermore, to an increasing extent the law recognizes intermediate degrees of incompetence." (Emphasis added.)
In accordance with CPR Rules 1.1, 1.2 and 1.14, the lawyer for an incompetent person can present only advocacy that is reasonably related to serving client's expressed desires. Utilizing this rubric, it would be inappropriate for an incompetent person's counsel to make over-reaching assumptions with regard to the client's preferences, if such preferences have not been expressed by the client. The attorney for an incompetent person does not have free reign to pursue a course which the attorney feels will best suit his client's interests, as it is the GAL who determines the nature and extent of those best interests, not the client. The GAL will report to the court concerning his ward's needs, expressed and unexpressed. However, Nafiah B.'s attorney must follow such directions as his incompetent client may provide, but no more. If either Nafiah B.'s attorney or her GAL becomes aware that she is unable to express particular preferences with regard to non-ministerial aspects of the litigation, it may well be that one or both representatives should apply to the court for further direction in the matter.
The application of RPC Rule 1.14 to the representation of children and, by extension, incompetent persons, is specifically approved in Schult v. Schult, supra, 241 Conn. 782-83. The child at issue in Schult was only five years old and suffered from concordant "emotional, psychological and developmental problems." Schult v. Schult, supra, 241 Conn. 781. Hence, one would reasonably assume that his age and conditions significantly impaired the child's ability to fully understand the nature of the legal proceedings at issue, and also limited his ability to assist in his representation at trial; he was, nonetheless, found to be entitled to the services of an effective attorney to represent his preferences, even while his best interests were reported to the court by his GAL. The Commentary to CPR Rule 1.14 explains that" . . . children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody . . ." In this matter, as noted above, the evidence establishes that Nafiah B. can function and communicate at the level of a six- to nine-year-old. Under the measure in Schult v. Schult and the Rules of Professional Conduct, the court is constrained to assume that an individual of Nafiah B.'s mental age and level of development is sometimes able to communicate expressed desires to her counsel and through him, to the court; the petitioner has provided no reason, in law or fact, to deny equal representation to an adult who, though incompetent, is able to express her reasonable preferences to her attorney. See 241 Conn. 782-83.
In framing its Motion for Articulation, DCF implied that the court should focus solely upon that portion to the Commentary to RPC Rule 1.14 which states that "If a legal representative has already been appointed for the CT Page 10275-h client, the lawyer should ordinarily look to the representative for decisions on behalf of the client." The court finds that the circumstances of this case are not "ordinary," and this Commentary does not bind Nafiah B.'s attorney to blind adherence to recommendations made by the respondent mother's GAL. Nafiah B.'s constitutional ties to her child are discussed in Part II., rendering this matter markedly different from one which merely involves an incompetent person's desire to forgo financial gain from a proposed sale of property or the like. See Commentary to RPC Rule 1.14. Moreover, Nafiah B.'s ostensible preference to be reunited with her infant son is not per se unreasonable, merely because she is affected by significant mental retardation. Her assuredly "strongly articulated" preference in this matter is no more, or less, unreasonable than the desire for reunification expressed by a parent who strenuously objects to the continuation of ex parte OTC orders or a finding of neglect, even though that parent is incapacitated by a substance abuse which is refractory to treatment, by long-term incarceration, or by an irreparably ingrained pattern of anti-social conduct which is harmful to children. DCF would not seek to deny the attorneys right to represent the expressed desires of a parent who presents with those other conditions. However, even with effective advocacy for a mentally disabled individual, as for any parent in a child protection case, it falls to the court to determine what weight, if any, shall be given to the parties' expressed preferences, while considering the evidence as a whole and assessing the best interests of the child at issue.
In reaching this determination, the court has acknowledged that although Nafiah B. is not competent for purposes of trial, this status does not extinguish the constitutional protections to which she is entitled as Isaiah's biological parent. "The law does not deprive a person adjudicated incompetent of access to the courts in order to seek redress; rather, provision is made to ensure that such interests are well represented." Cottrell v. Connecticut Bank Trust Co., supra, 175 Conn. 261 (incompetent person, even when served by a conservator, may seek to appeal a probate order when GAL refuses to do so). Even those cases endorsing the next friend or guardian's role in bringing of an action for a minor child or, by extension, for an incompetent person do not interfere with the fundamental principle that a client is entitled to be represented by competent counsel, once an action has been brought on the client's behalf. CPR Rules 1.1, 1.2, 1.14. See Newman v. Newman, supra, 235 Conn. 102; Cottrell v. Connecticut Bank Trust Co., supra, 175 Conn. 261. Thus, it is important to remember that the purpose of appointing the GAL to assist an incompetent person, is not . . . to burden nor hinder [Nafiah B.] in enforcing [her] rights; nor to confer any privilege or advantage on persons who claim adversely to [her]." (Internal quotation marks and citations omitted.) Cottrell v. Connecticut Bank CT Page 10275-i Trust, supra, 175 Conn. 263. Binding Nafiah's attorney to follow only the directions provided by her GAL could, in effect, "hinder" the respondent mother in pursuing goals that may be reasonable for any parent, no matter how mentally challenged. Such restriction would fly in the face of the rules previously enunciated by our Supreme Court, and offend the Rules of Professional Conduct adopted by the judges of the Superior Court for use in such matters. The court's resolution of this aspect of the Motion for Articulation is entirely consistent with the level of advocacy which is appropriate for an individual who is charged with the commission of a crime; who is found incompetent to stand trial but restorable to competency with the administration, of medication; and who is unable to tender a valid consent for the use of such medication. According to our statutory protocol, "prior to deciding whether to order the involuntary medication of the defendant . . . the court shall appoint a health care guardian . . . to represent the health care interests of the defendant before the court." General Statutes § 54-56d(k)(3). Like a GAL who reports to the court concerning an adult ward's best interests in child protection litigation, the health care guardian is expected to report to the court concerning "findings and recommendations concerning the administration of psychiatric medication to the defendant . . ." Id. In deciding whether to force medication upon an incompetent defendant, the court must "take into account such health care guardian's opinion concerning the health care interests of the defendant." (Emphasis added.) Id. However, the court is not bound by the findings of the health care guardian under these circumstances, any more than the court is bound to adhere to the recommendations made by a respondent parent's GAL in child protection litigation. Thus, the role of the health care guardian does not supplant that of the defendant's attorney, who is expected to maintain a "normal client-lawyer relationship" with the defendant "as far as reasonably possible." RPC 1.14. Similarly, in a case such as this, Nafiah B.'s attorney should continue to advocate on behalf of his client's expressed desires, even if these desires conflict with the "findings and recommendations" of the GAL charged with the responsibility of reporting concerning her best interests. It falls to the court to resolve any such conflict.
In addressing the compelling need for a minor or incompetent person to have the benefit of effective advocacy, even when such advocacy is inconsistent with his best interests, the Schult v. Schult court commented: "we recognized a similar concern in State v. Garcia, 233 Conn. 44, 90 n. 36, 658 A.2d 947 (1995), in which we concluded that because his legal interests and medical interests may diverge, an incompetent criminal defendant should have both legal counsel to CT Page 10275-p represent his legal, or expressed, interests, and. a guardian appointed to represent his medical, or best, interests." Schult v. Schult, supra, 241 Conn. 780.
The "liberty interests" underlying § 54-56d(k) are constitutionally akin to those attendant to the integrity of the parent-child relationship, as described in Troxel v. Granville, supra, 530 U.S. 57, 65-66. Thus, an incompetent individual facing OTC neglect/uncared for allegations of constitutional dimension in a child protection matter should be entitled to the same degree of advocacy in challenging those allegations, as is an incompetent individual who is subject to medication management when facing criminal charges affecting his constitutionally-protected liberty interests. The attorneys in the criminal and civil matters are bound to represent the client, not a guardian who has been appointed by the court pursuant to § 54-56d(k) or § 45a-132.
The Rules of Professional Conduct restrain the attorney for an incompetent individual in his representation of the client at issue. Our law makes it clear that the lawyer for an incompetent cannot testify on the client's behalf at trial; the lawyer is not permitted to advocate for his or her own personal interests in a given matter. As governed by RPC 1.1, 1.2 and 1.14, the attorney can present only advocacy that serves the client's "strongly and articulately expressed" preferences. In re Tayquon H., supra, 76 Conn.App. 707 n. 18. It would be inappropriate for an incompetent individual's attorney to make assumptions with regard to the CT Page 10275-j client's desires and preferences, if desires have not been expressed by the client. If the client manifests an inability to communicate with the lawyer, for purposes of expressing the desired course or outcome of the litigation, the lawyer would thereby be prevented from fulfilling his obligations to the client as set forth in CPR Rules 1.1, 1.2, 1.14. Under such circumstances, it may well be that the lawyer should apply to the court for further direction concerning ethical representation of the client in accordance.
Rule 3.1 of the Code of Professional Responsibility limits the attorney to binging forward meritorious claims and contentions. The Commentary to CPR Rule 3.1 explains, in pertinent part: "The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed."
Here, however, there is insufficient evidence from which the court can conclude that Nafiah B. has been unable to express her preferences to her attorney, despite her measured intellectual and functional limitations. In a child protection matter which involves claims of constitutional magnitude related to preservation of family integrity, thorough safeguards must be in place to ensure that an incompetent respondent parent has a spokesperson who can make her desires known to the court, and to further ensure that the parent's best interests are the subject of the court's attention. where there is no evidence that the incompetent person's attorney is unable to determine her preferences from privileged conferences with the client the court should not intervene to abrogate the incompetent person's opportunity for effective representation of those preferences at trial. Schult v. Schult, supra, 241 Conn. 783-84.
Thus far in the proceedings, Nafiah B.'s GAL has not indicated that the respondent mother is unable to effectively communicate with her attorney concerning basic preferences in the pending matters. At the hearing of DMR's Motion to Dismiss on August 29, 2003, Nafiah B.'s GAL did report that it would be in his ward's best interests to have DMR remain a party in this case.
At this stage of the proceedings, the court has but scant information related to the position espoused by Nafiah B.'s GAL on behalf of his ward. However, as in other matters, it is entirely conceivable that upon hearing of the contested OTC and neglect/uncared for matters, Nafiah B.'s GAL will deliver a report which is pertinent to her best interests but inconsistent with the respondent mother's preferences or desires. "The trial court is in the best position to evaluate the [incompetent's] need for representation as the case and the evidence unfold." In re Tayquon H., supra, 76 Conn.App. 702 n. 9., citing Schult v. Schult, supra, 241 Conn. 780-81. Under these circumstances, the court finds that the interests of justice will best be served by applying the principles of law and policy set forth above, allowing the GAL to address Nafiah B.'s best interests, while her attorney currently advocates to achieve the respondent mother's expressed preferences during the pre-trial and trial proceedings.
IV. ORDERS
Nafiah B.'s GAL shall fulfill the following specific duties and responsibilities: CT Page 10275-k
a. The respondent mother's GAL shall independently investigate the facts related to his ward's past history, present status and future potential; visit with her and interview the parties to verify that all court orders are being followed; attend all court proceedings and administrative hearings in the course of the child protection matter; and determine Nafiah B.'s best interests under the facts of this particular case.
b. The respondent mother's GAL shall take such steps as are necessary to assist his ward in understanding the events unfolding in and the ramifications expected from the prosecution and defense of the ongoing child protection litigation in the administrative and court proceedings. Those steps shall include, but are not limited to, the presentation of requests for additional time or continuance to the administrative officer or the court to enable him to communicate with his ward outside of the hearing of the officer or the court. The GAL may present those requests to the administrative officer or the court without the assistance or intervention of counsel for any party.
c. The respondent mother's GAL shall report to the court concerning his ward's best interests, at such times as are convenient to the court, speaking as a sworn witness and subject to cross-examination, thereby ensuring that the decision maker is made aware of all the facts and evidence relevant to his ward's best interests, and making appropriate recommendations to the court through his testimony.
d. The respondent mother's GAL shall take such other steps as are necessary to ensure that his client's best interests are made known to the court. Those steps shall include, but are not limited to, the identification of prospective witnesses and the presentation of specific questions for all witnesses through any of the other counsel participating in the matter whose determination of the outcome of the matter is coextensive with the GAL'S determination of his ward's best interests, or as otherwise directed by the court.
e. The respondent mother's GAL may discuss Nafiah B.'s best interests with other counsel in this matter, as suits his ward's best interests, understanding that the limits of attorney-client confidentiality do not attach to him unless specified by statute, common law, the Code of Professional Responsibility or the Rules of Practice.
f. The respondent mother's GAL shall seek prior court approval before incurring extraordinary expenses such as consultant fees.
g. The respondent mother's GAL shall seek cooperative solutions on behalf of the best interests of his ward, but shall seek prior court approval CT Page 10275-l before entering into any agreement or plan entered into on behalf of the ward insofar as the physical return of Isaiah to her custody is concerned.
BY THE COURT,
N. Rubinow, J.
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